The Best Defense: Why Elected Courts Should Lead Recusal Reform

In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority. The attacks are fueled in part by the growing influence of money in judicial elections and the dismantling of codes of judicial ethics that once helped to preserve the distinctive character of the judiciary, even during the course of campaigns for the bench. The unabated acceleration of those trends erodes public confidence in the ability of courts to serve as fair arbiters of disputes. Moreover, the undifferentiated cynicism bred by those trends tars all courts – elective and appointive, state and federal – with the same brush, undermining resistance even to extreme anti-judicial rhetoric and activism. The threat is sufficiently serious to command attention at the highest levels of the judiciary. The time has come for elected courts, which are at the eye of the storm, to replace anxiety about declining public trust with active measures to restore it. Without a meaningful response to legitimate concerns induced by their own campaign-related behavior, judges cannot expect the public to rise to their defense when their authority is questioned on illegitimate grounds. To protect judicial independence, generally, elected courts must embrace the public demand for accountability – not by yielding to pressure on hot-button issues, but by recognizing that with independence comes a duty to preserve both the reality and appearance of justice. Elected courts must demonstrate their accountability for the decisions they make by more aggressively distancing themselves from situations in which their fairness and impartiality might reasonably be questioned. Readers familiar with the American Bar Association\u27s Model Code of Judicial Conduct will recognize in this exhortation a call for stiffer disqualification or recusal policies. Canon 3E(1) of that Code, which has been adopted in some form by nearly every state and by Congress, provides: A judge shall disqualify himself or herself in a proceeding in which the judge\u27s impartiality might reasonably be questioned. This article suggests that current disqualification doctrines and procedures are inadequate to preserve public trust and that, to safeguard their own independence, courts should consider a variety of reforms. Part I describes trends undermining public confidence and explains how, in two recent decisions, the United States Supreme Court has both exacerbated the impact of those trends and absolved itself of responsibility for providing a solution. In Parts II and III, respectively, we offer a brief history of disqualification law and an explanation why, as it is currently interpreted, it cannot solve the urgent problems of today. Finally, Part IV outlines ten proposals for strengthening recusal that acknowledge the public\u27s legitimate demand for accountability while protecting the judiciary\u27s institutional need for independence